Judge: Theodore R. Howard, Case: 17-920613, Date: 2022-11-03 Tentative Ruling
The deposition notices seek depositions of Defendant Mr. Handal, a PMK and two experts. The notices would be timely if discovery cut-off is tied to 10/3/22 trial date. In looking at the Court’s orders and the procedural history of this case, the Court finds, somewhat surprisingly, that the discovery cut-off is indeed tied to the 10/3/22 trial date for two reasons.
1. Trial Date was vacated on 10/8/20 and when court set trial date at 8/5/22 hearing, it was the same as an initial trial setting
On 10/8/20, the Court “vacated” the trial date. When the trial date was “vacated” it would seem reasonable to believe that there was no cut-off on discovery. Typically, when a court vacates an order, it is as though the order has never existed. If that were the case, then when the court vacated the trial date, it was as though no trial date had ever been set. Therefore, when the court set the trial date for 10/3/22, one has to conclude this triggered the new cut-offs tied to the October 3, 2022 trial date.
Mr. Handal argues that at the 8/5/22 hearing “the Court expressly rejected Wymont’s request to re-open discovery,” (Opp at 5:16-17) This seems suspicious because there is no mention of such in the Court’s 8/5/22 order. The fact is that the Court issued numerous detailed rulings leads it to believe that since there was no mention of discovery in the 8/5/22 order, it may not have been discussed. If it was, the Court was not in a position to make a finding of something that was not then before it. Further, Mr. Handal’s assertion that opposing counsel concedes that the court made this admonishment at the 8/5/22 hearing is not an accurate reflection of what is said Wymont’s counsel’s declaration.
Interestingly, Mr. Handal calls the 8/5/22 order a “resetting” of the trial date which seems to be an effort to word-smith his way around the fact that the Court had vacated the prior trial date. However, the more accurate word choice would be that the court “set” the trial date. In fact, the Court used the phrase “jury trial is scheduled” in the 8/5/22 order as opposed to “continued to” which is more consistent with an initial setting of the trial date.
2. CCP §599 Applies retroactively to all trail continuances during State of Emergency where deadlines had not passed by 3/19/20.
Prior to Covid, there was no doubt that ordering a continuance or postponement of a trial date would not continue the discovery cut-off’s unless the court ordered same. (CCP §2024.020)
However, during covid, CCP §599 was enacted (with effective date of 9/18/20) which states:
(a) Notwithstanding any other law and unless ordered otherwise by a court or otherwise agreed to by the parties, a continuance or postponement of a trial or arbitration date extends any deadlines that have not already passed as of March 19, 2020, applicable to discovery, including the exchange of expert witness information, mandatory settlement conferences, and summary judgment motions in the same matter. The deadlines are extended for the same length of time as the continuance or postponement of the trial date.
(b) This section shall remain in effect only during the state of emergency proclaimed by the Governor on March 4, 2020, related to the COVID-19 pandemic and 180 days after the end, pursuant to Section 8629 of the Government Code, of that state of emergency and is repealed on that date. [emphasis added]
The first issue is whether §599 applies to all trial continuances issued where discovery remained open as of 3/19/20 or whether it only applies to trial continuances issued after the effective date of 9/18/20. Although there are no cases citing to this statute, the legislature does specifically state that it intended to extend any “deadlines that have not already passed as of March 19, 2020.” This seems to reflect a direct intention to make §559 retroactively applicable to all orders. Further, §559 was clearly a response to the Covid lock downs and a recognition of the state’s interest in having people immediately begin restricting their activities. The State of Emergency was declared March 4, 2020 and §559 states that it is in effect during the state of emergency. Such lends support to a conclusion that the legislature intended this statute to retroactively apply to trial continuances issued at any time during the State of Emergency when the discovery cut-off had not already passed as of 3/19/20.
If the statute were to be interpreted to apply only to a trial continuance order issued after 9/18/20, then it would essentially render this portion of the statute meaningless and produce results which it seems the legislature was intending to address. For example, if a trial had been set for 9/1/20 with a discovery cut-off of 8/1/20, then an order on 7/15/20 continuing the trial would only result in the discovery cut-offs being extended if §559 were retroactively applied. If not retroactively applied, then discovery would remain cut-off.
Accordingly, since §599 is to be applied to all trial continuances issued during the State of Emergency where discovery had not already been cut-off as of 3/19/20, then we now need to apply CCP§ 599 to each of the Court’s orders. Mr. Handal asserts that discovery had been cut-off with the 10/19/20 or 2/1/21 trial dates (10/25/22 Brief at 7:8-10 – ROA 1046).
• 5/19/20, Court continues trial to 10/19/20. Mr. Handal states: “As the Covid Pandemic raged the Court suspended all civil trials, hearings, and proceedings from March 23, 2020, through May 22, 2020. Then on May 19, 2020, trial was continued under Covid Protocols to October 19, 2020 (Third trial date ROA # 637).” (10/25/22 Brief at 5:1-3 – ROA 1046). There is no mention of discovery cut-offs in the order and therefore, pursuant to CCP §559, the discovery cut-offs would be tied to the 10/19/20 trial date without the need to mention that fact.
• 9/17/20, Court continues trial to 2/1/21. Again, since there is no mention of discovery cut-offs in the order and therefore, pursuant to CCP §559, the discovery cut-offs would be tied to the 2/1/21 trial date.
• 10/8/20, Court vacates the 2/1/21 trial date. This, as discussed above, eliminated all discovery cut-offs. However, if vacating the trial date were somehow considered to be a “continuance” of the trial date, then it would still be subject to CCP §599 and since there is no mention of discovery cut-offs in the order, all discovery would be tied to the new trial date, whenever that got set.
• 8/5/22, Court sets trial for 10/3/22. There is no mention of discovery cut-offs and therefore, CCP §599 would apply and all dates would be tied to the new date.
Accordingly, it is determined that cross-defendant Wymont has standing to bring the two discovery motions. However, since this was the only issue in opposition to the deposition notices, the parties should resolve this and get the depositions completed. It would therefore make sense to order the parties to have a meet and confer to try to get these depositions scheduled.
The parties are ordered to meet and confer within 10 days in an effort to resolve the deposition scheduling issues set forth in the two motions.
Court orders cross-defendant Wymont to give notice of this ruling.